11797 Muhammad is not Father of Any of Your Men … · 11797 Muhammad is not Father of Any ... ship in which a father (or mother) gives a daughter to a man ... less man did not leave

Muhammad Is Not the Father of Any of Your Men

The Making of the Last Prophet

DAVID S. POWERS

University of Pennsylvania Press

Philadelphia

11797 Muhammad is not Father of Any of Your Men (#01).indd iii11797 Muhammad is not Father of Any of Your Men (#01).indd iii 3/5/09 1:59:08 PM3/5/09 1:59:08 PM

Chapter 2

Adoption in the Near East: From Antiquity to the Rise of Islam

The rise of Islam has to be related to developments in the world of late antiquity.

—Patricia Crone, “What Do We Actually Know About Mohammed?” 5

The abstract noun adoption refers to the act of establishing a man or woman as parent to one who is not his or her natural child. Adoption creates a fi lial relationship between two individuals that is recognized as the equivalent of the natural fi liation between a biological parent and his or her child. Whereas a legitimate child qualifi es for certain rights (for example, inheritance) and du-ties (for example, support for an elderly parent) by virtue of his or her natural fi liation, a male or female who does not have these rights or duties may never-theless acquire them through the legal fi ction of adoption.

Adoption practices are found in numerous human societies, and the roots of the institution can be traced back to the beginnings of recorded history. These practices are in large part a response to the problems of childlessness and parentlessness. Islamic sources indicate that the inhabitants of the Ara-bian peninsula practiced adoption in the last quarter of the sixth and fi rst quarter of the seventh centuries c.e. These same sources indicate that adop-tion was abolished in the year 5/627 in connection with a specifi c episode in the life of the Prophet Muhammad. In this chapter, I lay the groundwork for a reexamination of the traditional Islamic explanation for the abolition of adop-tion. To this end, I begin with an overview of adoption practices in the Near East from the middle of the second millennium b.c.e. to the middle of the fi rst millennium c.e., treating fi rst pagans and polytheists and then monotheists.

Adoption Among Pagans and Polytheists

Ancient Near East

In the ancient Near East, there was no abstract term for adoption; rather, an adult man or woman would take a male into sonship or a woman into daughter-

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ship. The new relationship, recognized as the equivalent of the natural fi liation between a biological parent and his or her legitimate child, was created infor-mally without the participation of any offi cial or representative of the state. The biological parent and the adoptor entered into an agreement with one another that was sometimes recorded in a private contract. As a consequence of this agreement, the adoptee took the name of the adoptor and became re-sponsible for care of the new parent in his or her old age. In addition, mutual rights of inheritance were created between adoptor and adoptee.1

The adoption of a son served two fundamental purposes: fi rst, to keep property in the family by securing a male heir when there was no natural son; and, second, to provide for the care of adoptive parents in their old age and to make arrangements for their proper burial. To insure that wealth would remain within the family, the adoptor might arrange for the adoptee to marry his daughter. In such cases, the adoptee—who was both a son (mar�u) and a son-in-law (h °atanu)—became a full member of the household, and he often was given part or all of his father’s inheritance.2

Adoptions were recorded in written contracts inscribed on clay tablets. These contracts have a stereotypical form that invariably includes a preamble, stipulations, and a penalty clause.3 An adoption contract for a son is called tuppi maruti, that is, a document of sonship. The contract could be terminated by either party, unilaterally, by the performance of a speech act. An adop-tive parent who wished to dissolve the relationship needed only to say, “You are not my son.” If the adoptee wished to dissolve the relationship, he was required to say, “You are not my father” or “You are not my mother.” Many adoption contracts contained a penalty clause designed to prevent unilateral dissolution. In those cases in which the adoption agreement had assigned an inheritance share to the adoptee, the party that dissolved the agreement for-feited that share. In certain cases, the adoptor was required to concede to the adoptee not only the share to which he was entitled but also the entire estate.4

Females were also adopted. A female adoptee became subject to the au-thority of her adoptive parent, who frequently would secure a husband for the girl and provide her with a dower. More than sixty matrimonial adoption contracts have been recovered from Nuzi, a Hurrian settlement located on the east bank of the Tigris River near the city of Arrapha (modern Kirkuk).5 Matrimonial adoption falls into three categories.6

1. Adoption in Daughtership. A tuppi martuti is a tablet of adoption in daughter-ship in which a father (or mother) gives a daughter to a man (or woman) who adopts her. The adoptor pays a sum of money (usually 10–25 shek-els) to the biological parent and stipulates that he (or she) will arrange for the adoptee to marry. The adopting parent usually selects a free man as the adoptee’s husband, although some tablets mention marriage to a


Adoption in the Near East 13

slave. The arrangement sometimes took place between close relatives, e.g., a girl whose mother had died was given in adoption to the mother’s husband or to her sister’s husband or to her brother’s wife’s brother, while at other times it took place between people who knew each other well, e.g., a client gave his daughter in adoption to his patron in order to provide her with support for life in the patron’s household.7

2. Adoption in Daughter-in-Lawship. A tuppi kallatuti is a tablet of adoption in which a father gives his daughter in daughter-in-lawship to a man who marries the girl to his son. Thus, the girl becomes the adoptive father’s daughter-in-law (kallatu).8

3. Adoption in Daughtership and Daughter-in-Lawship. A third type of adop-tion combines the tuppi martuti and the tuppi kallatuti into a tuppi martuti u kallatuti, i.e., a tablet of adoption in daughtership and daughter-in-lawship. Wealthy individuals used this type of adoption to acquire the lifelong services of a female dependent. Most adoptees came from poor families and were given away in adoption because of economic hard-ship experienced by the biological parents. In this type of adoption, a parent gives a daughter to a free man or woman who marries the girl to a slave. If the fi rst husband dies, the master reserves the right to marry her to a second slave, then to a third, and so on. The contract stipulates that the adopted child will remain in the adoptor’s house. Any wealth acquired by the adoptee during the period of the adoption belongs to the adoptor–and not to the adoptee’s children or any other heir.9

Ancient Greece

In ancient Greece the oikos or “house” of a man who died without leaving a son became extinct, even if he was survived by an uncle, nephew, or cousin. A man who had no son could avoid this misfortune by adopting one.

In Greek the abstract noun huiothesia, derived from huios (“son”) and tithemi (“to put or place”), signifi es the act of placing or taking in of someone as a male heir. For the Greeks, adoption served as a means to secure an heir, to provide sup-port for an elderly parent, and to insure the continuity of one’s “house” and the family cult. It was not uncommon for the adoptee to be an adult but it was uncommon—albeit not impossible—to adopt a female, who would become epikleros or “heiress” upon the death of her adoptive father. Over time, Attic law developed three modes of adoption.

1. Inter vivos adoption: A man who had no son could adopt a son during his lifetime. The adoption was marked by a ceremony in which the adop-tive father introduced his son to his family, religious brotherhood, and local townsmen so that all three groups might bear witness to the new legal relationship. The adoptee took the family name, was expected to


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serve and honor his father in his old age, and assumed responsibility for his burial. The adoptee was in all legal respects the son of his adoptive father so that upon the latter’s death he inherited his property just like a natural son. At the same time, the adoptee ceased to be a member of his natal family and lost all inheritance rights with respect to his natural parents, siblings, and other blood relations.

2. Testamentary adoption: Solon (d. 558 b.c.e.) introduced a law that made it possible for a childless man to designate an adoptive son in a last will and testament, in which case the adoption took place immediately after the death of the testator.

3. Posthumous adoption: Eventually, it was established that even if a child-less man did not leave a last will and testament, his heir nevertheless might be adopted posthumously as his son—although the details of this procedure are obscure.10

Pagan Rome

In pagan Rome, the only person fully recognized by the law was the pater-familias or head of the household. The relationship between the paterfamilias and his children was regulated by the legal institution of patria potestas, which gave the paterfamilias the power of life and death over his children; he also exercised exclusive ownership of his children’s wealth, even after they had become adults. Under normal circumstances, patria potestas was created by birth out of a Roman marriage, but it also could be created artifi cially by adoption.11

The original motive for adoption appears to have been the desire of a man who had no children to ensure the continuation of the sacra or family cult. Over time, the religious motive lost its force, but the desire to perpetuate the family line remained strong. Following the promulgation of the Twelve Tables in 450 b.c.e., the procedure whereby a male or female was released from the potestas of one person and made subject to that of another was a complicated one that involved three mancipations and two manumissions.12

Adoption was commonly practiced by the aristocratic families of Rome, including those with imperial ambitions. The Julio-Claudian emperors (r. 27 b.c.e. –68 c.e.) seldom produced a son, and adoption was therefore the principal means of securing a smooth succession. Of the fi ve Julio-Claudian emperors, Augustus, Tiberius, Caligula, Claudius, and Nero, only Claudius was a blood relative of his predecessor; the other four emperors had all been adopted.13 It may have been in response to the dynastic needs of Roman em-perors that adoption procedures were simplifi ed in later Roman law. In his Institutes, Gaius (130–180 c.e.) recognizes two forms of adoption, adrogatio and adoptio. (1) Adrogatio refers to the procedure whereby a paterfamilias adopted a post-pubescent male who previously had been emancipated by his biological



father and was therefore sui iuris or master of his own affairs. In this form of adoption, which could take place only in Rome, the priestly college held a preliminary investigation during which the adopting parent was asked if he wished to adopt the male in question, and the prospective adoptee was asked to give his consent to the new relationship. If the adoption was approved, the priestly college would send a recommendation to the Roman Assembly known as the comitia curiata, which would make the fi nal decision. (2) Adoptio or simple adoption refers to the procedure whereby a paterfamilias adopted a male or female of any age. Simple adoption differs from adrogatio in two respects: First, it might take place anywhere in the empire, on the condition that it was performed in the presence of a provincial governor or magistrate. Second, it involved fewer formalities. All that was needed was for the natural father to release his son from his potestas and for the adoptive father to affi rm his acqui-sition of potestas over his adopted son. As in Greek law, an adopted son had the same rights and privileges as a legitimate natural son, including the right to inherit from his adoptive father.

Adoption Among Monotheists

Israelites

Childlessness is a universal phenomenon. Adoption is not. Some societies re-gard the practice of adoption as unnatural and abhorrent. In the ancient Near East, the rise of monotheism appears to have been accompanied by a turn against adoption.

The Israelites did not recognize the institution of adoption: There is no abstract word for adoption in biblical Hebrew, the Pentateuch contains no laws or narratives that specifi cally mention adoption, and neither biblical nor post-biblical law treats the institution.14 The Israelite/Jewish attitude to adoption should come as no surprise. As we have seen, the theological doctrine of divine election is tribal and exclusive in nature. To qualify as a member of the group known as the Children of Israel, one had to be a lineal descendant of one of the twelve sons of Jacob. Blood lines were of critical importance. Although adoption created the appearance of fi liation, the ancient Israelites regarded this tie as nothing more than a legal fi ction that threatened to undermine the integrity of the Israelite tribe.

The Israelites, of course, were not immune from childlessness, a phenom-enon that receives considerable attention in the biblical narratives. Adoption may have been foreclosed, but there were alternatives. A childless man, like Abraham, could take a second wife and/or concubine in the hope of produc-ing a son and heir. Alternatively, there was the institution of yibbûm or levirate marriage. Under normal circumstances, it was forbidden for a man to marry his sister-in-law (Lev. 18:16), but an exception was made in the case of a man


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who died without leaving a son. In this instance, the importance of perpetu-ating the deceased man’s name was so compelling that the incest taboo was waived. Indeed, the dead man’s brother was obligated to marry his widowed sister-in-law. If the union between the widow and her brother-in-law pro-duced a male child, the child was regarded as the son and heir of his deceased father.15

Even if biblical law does not recognize adoption as a legitimate institution, the biblical narratives suggest that the Israelites did in fact practice adop-tion.16 The biblical practice resembled its ancient Near Eastern counterpart in three respects: there was no abstract term for adoption; the procedure was private and informal; and the new relationship was created by a linguistic performance in which the adopting parent took a male or female into sonship or daughtership.17 The biblical narratives contain several references to adoption. For example, after Pharaoh’s daughter discovered Moses, she paid the found-ling’s biological mother Leah to serve as the child’s nurse (Gen. 30:9–13), and then “he became to her as a son” (va-yehî lâ le-ben; Ex. 2:10)—an adoption formula that resembles one used in the ancient Near East. Similarly, Jacob said to his son Joseph, “Your two sons [Menasseh and Ephraim] . . . are mine” (Gen. 48:5–6). When Hadassah/Esther was orphaned, her cousin Mordechai took her as his daughter (leqahâh . . . le-bat; Esth. 2:7), again using an adoption formula familiar from the ancient Near East (cf. Akkadian ana mar(t)utim lequ). In other words, he adopted her.18

Evidence for Jewish adoption practices is also found in the records of in-dividual Jewish communities scattered across the Near East in late antiquity. In Egypt, adoption is mentioned in two documents in the Ananiah Family Archive composed for members of a Jewish military garrison on the island of Elephantine in the sixth century b.c.e.19 Adoption also may have been prac-ticed by the Bosporan Jewish community that lived on the north coast of the Black Sea in the fi rst century c.e. Inscriptions produced by members of this community refer to the establishment of small groups made up of “adopted brothers who worship the God Most High.”20

Adoption was not only a social practice but also a theological concept. The Israelites regarded the relationship between a father and his son as a metaphor for the relationship between God and His chosen people. The idea of sacred adoption is directly related to the theological principle of divine election. In Deuteronomy 14:1–2, God declares that He has chosen the Israelites as His sons out of all of mankind: “You are the sons of the Lord your God (banîm atem le-yahweh) . . . [who] chose you from among all other peoples on earth to be His treasured people.” Within the Israelite community, it is specifi cally the “house” or “seed” of David that has been chosen by the divinity for sacred adoption. The key text in this regard is II Samuel 7:11–16, in which the Lord makes the following promise to David:



11 . . . The Lord declares to you that He, the Lord, will establish a house for you. 12 When your days are done and you lie with your fathers, I will raise up your off-

spring after you, one of your own issue, and I will establish his kingship. 13 He shall build a house for My name, and I will establish his royal throne for-

ever.14 I shall be a father to him, and he shall be a son to Me. When he does wrong, I

shall chastise him with the rod of men and the affl iction of mortals;15 but I will never withdraw My favor from him as I withdrew it from Saul, whom I

removed to make room for you.16 Your house and your kingship shall ever be secure before you; your throne shall

be established forever.

This pericope refers to a single descendant of David who, according to v. 14, will be taken into sonship by God (anî ehyê lô le-av ve-hû yehyê lî le-ben) and treated by Him as a father treats a son.21 In v. 15, God promises David that He will never withdraw his favor (hesed ) from this descendant. The identity of this favored descendant of David through whom the king’s “house” and royal throne will be established forever subsequently would attract the attention of postbiblical Jews, Christians, and Muslims.

Sacred adoption is also mentioned by the prophet Hosea, who lived in the eighth century b.c.e. Although the Israelites appear to have broken the cov-enant at Sinai when they worshiped a golden calf, Hosea taught that God nevertheless would restore the covenant with His chosen people. The prophet described this new covenant in terms of divine sonship: “and in the place where it was said to them, ‘You are not my people,’ it shall be said to them, ‘sons of the living God’ ” (benei el hai; Hos. 1:10). This idea is taken one step further in the Book of Jubilees, a Jewish text written in the second half of the second century b.c.e. that would become important to the Eastern Church. The author of this text took the language of Hosea (“sons of the living God”) and added it to a modifi ed version of the adoption formula in II Samuel 7:14. It is noteworthy that he changed “I shall be a father to him, and he shall be a son to Me” (II Sam. 7:14) to “I shall be a father to them, and they will be sons to me” (emphasis added), thereby producing the following formulation: “And I shall be a father to them, and they will be sons to me. And they will all be called ‘sons of the living God’ ” ( Jub. 1:24–25a). In this manner the author of Jubilees enlarged the notion of sacred adoption so that it now included all of Israel. Sacred adoption is also mentioned in the Testament of the Twelve Pa-triarchs, a Jewish apocryphal text written around the turn of the fi rst century b.c.e. Here the promise of II Samuel 7:14 and Jubilees 1:24 is combined so that it applies to both the Davidic Messiah and the sons of God (Testament of Judah, 24:3).22


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Christians

About Jesus it can be stated with confi dence that he was born, lived, taught, and died in Palestine; the rest is historical conjecture.23 Our earliest source for the life of Jesus is the Synoptic Gospels: Matthew, Mark, and Luke. Matthew and Luke agree that Jesus was born in Bethlehem and raised in Nazareth. Historical allusions scattered throughout the New Testament suggest that Jesus was born some time before 4 b.c.e. and died in 30 c.e. or shortly there-after. There are two genealogies of Jesus in the Gospels, one in Matthew, the other in Luke; both suggest that Jesus was a lineal descendant of the biblical David. The genealogy found in Matthew is preceded by the assertion that Jesus is “the Messiah, the son of David, the son of Abraham.” There are forty names in Matthew’s list, including four women who played an important role in insuring the continuation of the Davidic line: Tamar, Rahab, Ruth, and Bathsheba. Matthew’s list begins with Abraham and ends with Joseph, “the husband of Mary, of whom Jesus was born, who is called the Messiah” (Matt. 1:1–17). Luke reverses the order. His list has seventy names, all men. It begins with Jesus, “the son—as was thought—of Joseph” and ends with Adam, “the son of God” (Luke 3:23–38). Both Matthew and Luke are careful to avoid saying that Joseph was the father of Jesus.

If Joseph was not Jesus’ father, then Joseph’s descent from David did not make Jesus a descendant of David. In order for Jesus to be descended from David, the connection must have been through his mother, Mary. Nowhere in the Gospels, however, does it say that Mary was of the Davidic line.24 This omission was repaired in the Protevangelium of James, an apocryphal text written in the second half of the second century c.e., where Mary is identi-fi ed as a member of the “tribe of David.”25 If so, then both Joseph and Mary were descendants of David, which gave their marriage added theological sig-nifi cance. According to Matthew, Mary was impregnated by the Holy Spirit after she was betrothed to Joseph but before the marriage was consummated. When Joseph discovered that Mary was pregnant, he kept the matter to him-self, intending to divorce Mary, albeit discreetly, lest she be exposed to “public disgrace.” Before he could divorce her, however, an angel appeared to him in a dream and said, “Joseph, son of David, do not be afraid to take Mary as your wife, for the child conceived in her is from the Holy Spirit. She will bear a son and you are to name him Jesus” (Matt. 1:18–21; cf. Luke 2:4–5). Mary gave birth to Jesus in Bethlehem, and shortly thereafter she and her husband returned to Nazareth, where Jesus was known as “the son of Joseph” (Luke 4:22). By marrying a pregnant woman and giving the child his name, Joseph appears to have adopted Jesus—even if there is no explicit statement to this effect in the New Testament.26

Like the Israelites, the fi rst Christians used the metaphor of sacred adop-tion to signify an important theological notion. As in the Hebrew Bible, so too



in the Gospels the ancient Near Eastern adoption formula (“You are my son”) is used to characterize God’s relationship with Jesus. In II Samuel 7:14 God promised that He would take a descendant of the House of David as His son; in Mark 1:11 God fulfi lled that promise by saying to Jesus, after his baptism: “You are my son, the Beloved; with you I am well pleased.” Similarly, in Mark 9:7, God gave the following instruction to Peter, James, and John at the time of Jesus’ transfi guration: “This is my son, the Beloved; listen to him.” Just as God refers to Himself as the father (av) of the Messianic descendant of David (II Sam. 7:14), Jesus refers to God as his Father while praying at Gethsemane: “Abba, Father, for you all things are possible” (Mark 14:36).

Unlike the Evangelists, who describe the relationship between God and Jesus in terms of the relationship between a father and his son, Paul uses the Greek abstract noun huiothesia to refer to this relationship. This word occurs fi ve times in the Epistles (Gal. 4:5; Rom. 8:15, 8:23, and 9:4; and Eph. 1:5), although never in the technical legal sense of the act of placing or taking in of someone as a male heir. Instead, Paul uses the term huiothesia to convey the idea of spiritual adoption. According to Paul, Christians have been baptized as spiritual children of God: “for in Christ you are all children of God through faith” (Gal. 3:26). Similarly, in Galatians 4:4–7 Paul explains that Christ brings freedom to those who are adopted as God’s children:

4 But when the fullness of time had come, God sent his Son, born of a woman, born under the law,

5 in order to redeem those who were under the law, so that we might receive adop-tion as children.

6 And because you are children, God has sent the Spirit of his Son into our hearts, crying, “Abba! Father!”

7 So you are no longer a slave, but a child, and if a child then also an heir, through God.

As a descendant of David, Christ is the Messiah who fulfi lls God’s promise in II Samuel 7:14. Unlike the Israelite covenant, which applies exclusively to the Children of Israel, the New Covenant includes both Christians of Jewish origin and Gentiles. The process of spiritual adoption is mediated metaphori-cally by the heart (a trope that resurfaces in the Qur�an in connection with adoption—see Chapter 4). In order to become a spiritual son of God, the believer must receive the Spirit of the New Covenant into his or her heart by accepting God as father. The external sign of the believer’s willingness to join with Christ in the Davidic promise of Divine redemption is the repetition of the words uttered by Jesus at Gethsemane: “Abba! Father!”27

The term huiothesia is also used in the sense of spiritual adoption in Romans 8:14–17, where Paul states that it is precisely because they have received the spirit of adoption (huiothesia) that God’s children are entitled to refer to God as Abba or Father:


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14 For all who are led by the spirit of God are children of God.15 For you did not receive a spirit of slavery to fall back into fear, but you have re-

ceived a spirit of adoption. When we cry, “Abba! Father!” 16 it is that very Spirit bearing witness with our spirit that we are children of God, 17 and if children, then heirs, heirs of God and joint heirs with Christ—if, in fact,

we suffer with him so that we may also be glorifi ed with him.

Just as, upon baptism, Jesus becomes the Son of God and receives God’s Spirit, so too, upon baptism, believers become spiritual children of God by repeating the cry “Abba! Father!” (v. 15). Just as Jesus, at the time of His res-urrection, is established as the Messianic son of God by the Holy Spirit, so too the spiritual children of God, at the end of time, will inherit God’s king-dom and receive His love and grace (v. 17). Thus, in the New Testament, the Greek notion of huiothesia or adoption was reinterpreted by Paul as a spiritual mechanism through which God expresses love for His children.28

The concept of adoption played an important role in the early Church. Some early Christians—subsequently labeled as heretics—argued that Jesus was a fl esh and blood human being who was the natural son of Joseph and Mary, and that it was by virtue of adoption that Jesus became the Son of God. Known as Adoptionists, adherents of this view disagreed about the moment at which the adoption took place: some early Adoptionists argued that it took place at his resurrection; by the second century c.e., most be-lieved that it occurred at his baptism. Jewish followers of Jesus known as Ebionites held that God chose Jesus as His son because he was the most righteous man on earth. God gave His son a special mission: to sacrifi ce himself willingly for the sins of humanity, in fulfi llment of God’s promise to the Jews. The adoption occurred at the time of Jesus’ resurrection, when God raised His son from the dead and took him up to Heaven. Toward the end of the second century c.e., Theodotus the Cobbler left Byzantium for Rome, where he taught that Jesus was a mere man; to this, some of his fol-lowers added that Jesus became God, either at his baptism or resurrection. Theodotus was excommunicated by Pope Victor I, who condemned Adop-tionism as a heresy.29 In the East, the Nestorians argued that Christ has two natures, one human, the other divine. In his divine nature, Christ is the son of God by generation and nature; as man, Christ is the son of God by adop-tion and grace—even if Jesus is nowhere specifi ed as the adopted son of God in the New Testament.30

In some Christian communities, the theological debate over spiritual adoption appears to have collided with the practice of civil adoption. In the Latin West, the tension between the two concepts is refl ected in the writings of Salvian, a fi fth-century priest who lived in Marseilles. Salvian was critical of childless couples who adopted the children of others and he denounced adoptees as the “offspring of perjury” (Ad. eccles. III.2). Relying on Salvian, Jack Goody has argued that Church antagonism to civil adoption resulted



in the disappearance of the institution from the early legislative codes of the German, Celtic, and Romanized peoples, which was followed in turn by the disappearance of civil adoption in the West.31 In fact, the situation was not simple or clear-cut. As in Judaism, the institution of civil adoption was not recognized; and like the rabbis, the canonists developed a sophisticated and complex body of law that made it possible to incorporate illegitimate children, orphans, and foundlings into the family without formally adopt-ing them.32

Byzantium

Church antagonism to civil adoption appears to have been less pronounced in the East, perhaps because the legal institution was fi rmly entrenched in the Near Eastern provinces of Byzantium.

The Syro-Roman Lawbook (hereinafter SRL)33 is a compendium of Roman law composed in the Greek-speaking world that purports to record laws promulgated by the Byzantine emperors Constantine (d. 337), Theodosius II (d. 450), and Leo I (d. 474).34 The Greek original was compiled at the end of the fi fth century c.e. and the compilation was later translated into Syriac—hence, its name—although we do not know exactly when; but it is Roman law, indeed, the only work of Roman law known to have been trans-lated into Syriac.35 The earliest surviving manuscript in Syriac dates from the sixth century c.e.36 Although the SRL has much to say about marriage, divorce, and inheritance, only two of its 157 paragraphs explicitly mention adoption: The adoption ceremony must be performed in the presence of a judge so that the biological father can release the child from his authority and transfer authority to the adopting parent (par. 89b); and if the person to be adopted exercises authority over himself, he must agree to the adoption in the presence of a judge (par. 101). A third paragraph may allude to the practice: A childless man may designate a slave as his heir in a last will and testament—presumably after adopting him (par. 3).

Adoption receives greater attention in the Institutes of Justinian (r. 527–65 c.e.),37 where the essential features of the Roman adrogratio and simple adop-tion are retained, albeit with secondary but not unimportant modifi cations. Whereas earlier Roman law limited adrogratio to males, Justinian extended the scope of adrogratio to include females. Another imperial reform relates to the inheritance rights of an adoptee. Previously, the legal effect of adoption was to subject the adoptee to the potestas of the adoptor, just like a natu-ral child. The adoptee took the name of the adoptive father and became a member of his adoptive father’s agnatic group. At the same time that he acquired the right to inherit from his adoptive father, he lost all such rights with respect to his previous potestas.38 This meant that if an adoptive fa-ther emancipated his adoptive son, the emancipated child no longer had any


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inheritance rights with respect to either his natural or adoptive family. To address this problem, Justinian modifi ed the law so that an adoptee hence-forth would retain the right to inherit from members of his natural family while at the same time acquiring the right to inherit from members of his adoptive family. As a consequence of this reform, an adoptee potentially had the right of inheritance in two families.39

The Sassanians

The Persians of late antiquity were familiar with the practice of adoption. As in Roman law, an adoptee did not lose all connections to his natal fam-ily and might be “returned,” if necessary. Like the Israelites, however, the Persians preferred to solve the problem of childlessness in another way. Sas-sanian cagar marriage, like the levirate, was designed to address the problem of childlessness.40 Indeed, the Persian institution can be seen as a variant of the biblical institution. According to Sassanian law, a man who failed to produce a legal heir was “nameless.” The purpose of cagar marriage was to insure that a man who died childless would nevertheless have a legal heir. It worked in two ways. First, if a man died childless, his widow was required to marry a male relative of her deceased husband (the obligation was not limited to the brother of the deceased, as in levirate marriage). Any child she produced with her second husband took the name of the fi rst husband. As in Roman law, however, the “adopted” child suffered from the problem of dual loyalty and sometimes became a pawn in a struggle between two families. For the cagar husband himself was now threatened by “nameless-ness” due to the fact that his biological child was regarded as the heir of his wife’s deceased fi rst husband. When disputes of this nature reached the courts, judges tended to favor the interests of a living father over those of a dead one. The second way in which cagar marriage worked was as follows. If a wife preceded her childless husband to the grave, a woman designated stur was selected to produce an heir for him (but not with him) by means of a cagar marriage. The stur might be the man’s sister or daughter. A childless man might designate a stur for himself in his will. If there was no stur, the priests nominated one.41

On the eve of the rise of Islam, civil adoption was a widely known and commonly employed social practice in the Near East, especially among pa-gans and polytheists; among monotheists, by contrast, adoption was avoided. The Israelites preferred to solve the problem of childlessness through the institution of the levirate, while the Persians preferred cagar marriage. Even if biblical law does not recognize adoption as a legal institution, the biblical narratives suggest that the Israelites did in fact practice adoption. In addi-tion, sacred adoption was a prominent concept in both Jewish and Christian theology. In the Hebrew Bible, the relationship between a father and his



son serves as a metaphor for the relationship between God and His chosen people. Early Christian Adoptionists held that Jesus was a human being, the natural son of Joseph and Mary, who became the Son of God by virtue of adoption. Thus, Muhammad was born into a world in which adoption was an important but contested social practice and a key theological metaphor.


Chapter 3

The Abolition of Adoption in Early Islam

God has not . . . made your adopted sons your [real] sons . . . Q. 33:4

There is no adoption in Islam: the custom of the jahiliyya has been superseded.

—Prophetic hadı th

In the sixth century c.e., the Arabian peninsula was inhabited by both trans-humant nomads and settled people, most of whom were pagans and polythe-ists, although some were monotheists or had been exposed to monotheism.

The Arabs were familiar with one or another form of the ancient and late antique Near Eastern institution of adoption (and they may have been familiar with levirate and/or cagar marriage). Islamic sources report that in pre-Islamic Arabia, adoption served several functions: A child who had been captured and enslaved might be manumitted and adopted by a tribes-man; a member of one tribe or clan who fl ed from his natal group might be adopted by a member of another tribe or clan; and the child of a female slave might be adopted by its mother’s master. Both men and women ad-opted children, although only male adoptees are mentioned in the sources. If a man or woman was impressed by the talents of an orphan or a child of unknown parentage, he or she might adopt him as a son, whereupon the adoptee would take the patronymic of his adoptive father or the matronymic of his adoptive mother.1

The Arabic word al-tabannı, like the Greek huiothesia, is an abstract noun that signifi es to make someone a son or daughter. Islamic sources suggest that the Arabs conferred on adopted children the same legal status as was enjoyed by full-blooded offspring.2 As in other Near Eastern legal systems, adoption created rights of mutual inheritance (tawaruth) and mutual support (tanasur) between the adoptive parent and the adoptee. It was customary for an adop-tive father to assign to his adopted child a share of the inheritance equal to that of a natural son.3 Ella Landau-Tasseron has identifi ed several instances of adoption in pre-Islamic Arabia and early Islam, including the following males who were adopted by males.


The Abolition of Adoption in Early Islam 25

1. Abu Hudhayfa adopted Salim and gave him in marriage to his niece, Fat ˘ima bt. al-Walıd b. �Uqba;

2. al-Aswad b. �Abd Yaghuth adopted al-Miqdad b. �Amr (d. 33/654);4 3. al-Khatt ab b. Nufayl adopted �Amir b. Rabı�a al-Wa�ilı (d. 35/655–56)

and Waqid b. �Abdallah; 4. Ma�mar b. Habıb adopted Sufyan.

Adoptions by females are also mentioned in the sources, although, accord-ing to Landau-Tasseron, much less frequently than adoptions by males. Ex-amples include the following.

1. The mother of the jahilı poet �Amir b. al-Tufayl adopted the son of her husband’s second wife. She called him my son and protected him from his mother’s wrath.5

2. A woman named Hasana adopted the Companion Shurahbıl, who was henceforth called Shurahbıl b. Hasana (d. 18/639).6

3. A woman of Dubay�a known as Umm Burthun adopted a foundling who was called �Abd al-Rahman b. Adam. He was also known as Ibn Umm Burthun. He became a traditionist and served as an offi cial under �Ubaydallah b. Ziyad (d. 67/686).7

4. The Prophet’s wife �A�isha (d. 57/678) adopted the Kufan traditionist Masruq b. al-Ajda� (d. 63/683).8

The sources indicate that adoption was practiced in the Hijaz both before and after the rise of Islam, and that some adoptees continued to be known by the patronymics and matronymics of their adoptive parents as late as the middle of the fi rst century a.h.

Muhammad had fi ve sons, four—al-Qasim, al-Tayyib, al-Tahir, and �Abdallah—with his wife Khadı ja, and one—Ibrahım—with his concubine Mariya the Copt. All fi ve are said to have died before attaining puberty.9 In addition to his fi ve natural sons, Muhammad also had an adopted son named Zayd; and Zayd in turn had a son named Usama.

Zayd and Usama

Ca. 605 c.e., Muhammad acquired a slave named Zayd b. Haritha al-Kalbı, who was ten years younger than his master.10 Zayd was short, his nose was fl at and wide, and his skin was either white or tawny colored. Shortly thereafter, Muhammad manumitted Zayd and adopted him as his son, whereupon the young man’s name was changed to Zayd b. Muhammad. His nickname was Zayd al-Hibb (The Beloved Zayd) or Hibb Rasul Allah (The Beloved of the Messenger of God). Zayd was either the fi rst male or the fi rst adult male to embrace Islam after the Prophet himself.11


26 Chapter 3

Zayd is said to have married at least fi ve times. Shortly after receiving his fi rst revelation, the Prophet arranged for his adopted son to marry Umm Ayman, an Ethiopian who had been Muhammad’s wet nurse and later be-came his client.12 Umm Ayman must have been at least twenty years older than Zayd.13 Between 612 and 614, eight to ten years before the hijra, Umm Ayman gave birth to a son who was called Usama.14 Curiously, some un-named people claimed that the infant was not Zayd’s natural son, but an ex-pert in physiognomy confi rmed that Zayd was in fact the child’s father. The Prophet reportedly was delighted with the outcome.15 Henceforth, Zayd’s kunya was Abu Usama (alternatively, Abu Salama). Zayd was one of the emi-grants to Medina, where he married several additional women. When Umm Kulthum bt. �Uqba, the uterine sister of �Uthman b. �Affan, arrived in Me-dina, four men, including Zayd, expressed interest in marrying the female emigrant. Not knowing what to do, Umm Kulthum asked the Prophet for his advice, and he recommended Zayd. Umm Kulthum accepted Zayd’s mar-riage proposal and they had two children: Zayd b. Zayd [sic], who died while a minor; and Ruqayya, who died while under the care and protection of �Uthman. Zayd later divorced Umm Kulthum and married Durra bt. Abu Lahab. He divorced her too, after which he married Hind bt. al-�Awamm, sister of al-Zubayr. Eventually, he would marry—and divorce—Zaynab bt. Jahsh al-Asadiyya—about which more below.16

As the Prophet’s adopted son, Zayd was a member of his House, that is to say, he was one of the ahl al-bayt. In a letter that �Alı b. Abı Talib is said to have written to Mu�awiya just prior to the battle of Siffın (37/657), �Alı explains:

Surely, when Muhammad called for faith in God and for proclamation of His unity we, the people of his house (ahl al-bayt), were the fi rst to have faith in him and to hold true what he brought. . . . Whenever matters got tough and the battle cry was sounded, he used to put the people of his house up in the front rank and protected his Compan-ions from the heat of the lances and the sword. Thus �Ubayda . . . was killed at Badr, Hamza on the day of Uhud, Ja�far and Zayd . . . on the day of Mu�tah.17

Zayd was a formidable soldier and a skilled archer who participated in the battles of Badr, Uhud, the Trench, Hudaybiyya, and Khaybar. Muhammad appointed him as the commander (amı r) of seven or nine military expedi-tions.18 Alas, Zayd was killed in 8/629 at the Battle of Mu�ta—to be ana-lyzed in Chapter 5.19 At the time of his death he was either fi fty or fi fty-fi ve years old.20 Following his death, the Prophet’s wife �A�isha is reported to have said, “The Messenger of God never sent Zayd b. Haritha on a military mission without appointing him as the commander. Had [Zayd] outlived [the Prophet], he would have made him his successor” (wa-law baqiya ba�dahu istakhlafahu).21

As for Usama, he was born a Muslim and knew no other religion. The Prophet reportedly loved his grandson dearly and regarded him as a member



of his House; indeed, his love for Usama is said to have been equal to that of his love for al-Hasan b. �Alı.22 He gave Usama fi ne clothes and jewelry to wear.23 As a sign of his affection for his grandson, Muhammad called him Hibb b. Hibb Rasul Allah, the Beloved son of the Beloved of the Messen-ger of God; he also called him al-Radı f or “the one who rides behind [the leader on his horse].”24 At the time of the hijra to Medina in 1/622, Usama would have been approximately ten years old. Upon attaining puberty at the age of fourteen, Usama married Zaynab bt. Hanzala b. Qusama but later di-vorced her.25 Usama would marry six more women: Hind bt. al-Fakiha, Durra bt. �Adı, Fat ˘ima bt. Qays, Umm al-Hakam b. �Utba, Bint Abu Hamdan al-Sahmı, and Barza bt. al-Rib�ı. He fathered as many as twenty children, in-cluding Muhammad and Hind (their mother was Durra); Jubayr, Zayd, and �A�isha (their mother was Fat ˘ima), and Hasan and Husayn (their mother was Barza).26

Muhammad is said to have repudiated Zayd in 5/626 (see below and Chapter 4). But the Prophet did not forget the man who had been known as the Beloved of the Messenger of God. In 11/632, the Prophet appointed Usama—who could not have been more than twenty years old at the time27—as the commander (amı r) of a military expedition whose objective was to avenge Zayd’s death in southern Jordan. No sooner had the expedi-tion set out than the Prophet died after a brief illness. Usama returned to Medina. As a member of the Prophet’s House, it was only fi tting that he was one of six men who washed Muhammad’s body28 and lowered it into the grave.29 The expedition resumed at the beginning of the caliphate of Abu Bakr. Usama and his men marched to Wadı al-Qura and from there to Ubna in southern Palestine, where the Muslim forces reportedly killed anyone who approached them, took captives, set fi re to houses, fi elds and date-palm trees, seized booty, and terrorized the local inhabitants. Usama rode into battle on the horse that his father had ridden on the day he died, and he killed the man who had slain his father. Miraculously—or perhaps it was divine providence—the expedition returned to Medina without losing a single soldier.30 Despite the success of the mission, this would be the last military expedition commanded by Usama. In 20/641, the caliph �Umar awarded him a stipend of 4,000 dirhams, which was larger than the sti-pend that he awarded to his son �Abdallah b. �Umar. When �Abdallah com-plained to his father, the caliph told him that the Prophet had loved Zayd more than he loved �Umar, and that he had loved Usama more than he loved �Abdallah b. �Umar. It was in a house belonging to Usama’s wife that �Uthman was elected as caliph. The new caliph granted Usama some land and in 34/654–55 sent him to Basra to gather information about the situa-tion in the garrison town. Following the murder of �Uthman, Usama refused to pay homage to �Alı, whose supporters attacked and abused him in the mosque of Medina. He died in al-Jurf ca. 54/674 and was buried in Medina.


28 Chapter 3

Although his son Muhammad was a transmitter of hadı th, Usama’s descen-dants played no signifi cant role in the events of the fi rst century a.h.31

The Abolition of Adoption: The Standard View

The early Muslim community practiced adoption in Mecca, and adoption continued to be practiced following the hijra to Medina in 1/622. The institu-tion is said to have been formally abolished in 5/627. Subsequently, Muslim jurists would classify the practice as a prohibited act (haram) and they would develop alternative legal mechanisms to regulate the care of orphans, found-lings, and children of unknown parentage.32 Islamic sources portray the ab-olition of adoption as a direct result of a well-known episode in the life of Muhammad, and most Western scholars treat this episode as an event in the life of the Prophet, that is to say, as historical fact.33 What follows is a brief summary of the episode as it is presented in Islamic sources and understood by modern scholars.

Shortly after the hijra to Medina in 1/622, Muhammad’s adopted son Zayd married the Prophet’s paternal cross-cousin Zaynab bt. Jahsh. One day, while Zaynab was alone in her house and in a state of dishabille, Muhammad inadvertently caught sight of Zaynab and immediately fell in love with her. Upon learning of his father’s feelings for his wife, Zayd offered to divorce Zaynab. Muhammad rejected the offer, presumably because he knew that the Qur�an prohibits marriage between a man and his daughter-in-law. In response to this predicament, God revealed Q. 33:37, in which He not only gave the Prophet special permission to marry Zaynab but also specifi ed that henceforth the prohibition of marriage to a daughter-in-law would apply only to the former wife of a natural son but would no longer apply to the former wife of an adopted son. It must have been shortly after the revelation of this verse that Muhammad informed Zayd that he was no longer his father, os-tensibly to satisfy public concern about the seemingly incestuous nature of the Prophet’s marriage to Zaynab. The Prophet’s dissolution of his adoptive rela-tionship with Zayd—who now reverted to his birth name of Zayd b. Haritha al-Kalbı—led in turn to the abolition of adoption, as indicated by Q. 33:4–5: “God has not . . . made your adopted sons your [real] sons . . . Call them after their fathers.” Although these two verses do not explicitly state that adoption had been abolished, early Muslim jurists inferred this conclusion from pro-phetic hadıths in which the Prophet is reported to have said that anyone who knowingly claims as his father someone other than his biological father, or claims as his son someone other than his biological son, is an infi del who will be denied entrance to paradise.34

The relationship between Muhammad’s marriage to Zaynab and the abo-lition of adoption appears to have been that of cause-and-effect. Islamic tradi-tion teaches that Muhammad repudiated Zayd as his son in order to facilitate



his marriage to Zaynab; and that his repudiation of Zayd triggered the aboli-tion of adoption. The exegetes explain that adoption was abolished in order to put an end to the barbaric and unnatural jahil ı practice of equating the sanctity of a stranger with that of a blood relative.

By the end of the fi rst century a.h., reports about Muhammad’s marriage to Zaynab had become grist for the mill of Christian anti-Muslim polemic. In an exchange of letters between Leo III (r. 717–41) and �Umar b. �Abd al-�Azız (r. 99–101/717–20), the Byzantine emperor referred to the Prophet’s “seduc-tion” of a woman named Zeda [sic] as evidence of his “unchasteness” and duplicity. This was the worst of all the “abominations” that Leo attributed to Muhammad because, as he knew, the Qur�an represents the Prophet’s mar-riage to this woman as a product of divine intervention (“of all these abomi-nations the worst is that of accusing God of being the originator of all these fi lthy acts”). What greater blasphemy could there be, Leo asked rhetorically, “than . . . alleging that God is the cause of all this evil?”35

A similar attitude was expressed by John of Damascus (ca. 676–749) in his Fount of Knowledge, composed ca. 730.36 The second section of this text, entitled De haeresibus, contains a chapter on Islam in which John criticizes cer-tain “foolish” sayings attributed to Muhammad in connection with the laws of marriage and divorce: Muslim men may marry up to four wives at a time, may engage in sexual relations with as many concubines as they can afford to maintain, and are empowered to divorce their wives freely and without cause. It is in the context of his discussion of divorce that John mentions Zayd. He begins:

Mamed had a co-worker named Zeid. This man had a beautiful wife whom Mamed desired. When they were seated together, Mamed said, “O thou, God has commanded me to take your wife.” And he replied, “Thou art an apostle; do as God has said to you; take my wife.”37

Here, it will be noted, there is no mention of divorce. To correct this omis-sion, John presents a longer and more detailed version of the story. “Or rather,” he says, “that we may tell it from the beginning, he said to him”:

“God commanded me that you should divorce your wife.” And he divorced her. After many days he said, “But God commanded that I should take her.” Then when he had taken her, and when he had committed adultery with her, he made such a law: “Let him who desires it, divorce his wife. But if after the divorcement he shall return to her, let another (fi rst) marry her. For it is not lawful (for him) to take her, unless she shall have been married by another.” (Q. 2:230)38

In the expanded narrative, God commands Muhammad to inform Zayd that he should divorce his (unnamed) wife. Zayd complies. Many days later—pre-sumably after the divorcee had observed her waiting period—Muhammad announces that God has commanded him to “take” her. He too complies


30 Chapter 3

with the divine order. Now, however, Muhammad is accused of committing adultery.39 To refute this charge, John explains, Muhammad enacted Qur�an 2:230, which reads as follows:

If a man divorces her, she becomes unlawful to him until she has married another man. Then if he [the second husband] divorces her, there is no harm if the two unite again if they think they will keep within the bounds set by God and made clear for those who understand.40

The connection between John’s version of the episode and the Qur�anic version is not immediately apparent. If we assume that the man mentioned at the beginning of v. 230 is Zayd and that the woman is Zaynab, then the verse suggests that if Zayd divorces Zaynab, she becomes unlawful to him until after she has married another man. Subsequently Muhammad marries Zaynab and divorces her, with the result that Zaynab is now free to remarry Zayd. Alternatively, if we assume that the man mentioned at the beginning of the verse is Muhammad and that the woman is again Zaynab, then v. 230 suggests that if Muhammad divorces Zaynab, she becomes unlawful to him until after she has married another man. Subsequently, Zayd marries Zaynab and divorces her, with the result that she is now free to remarry Muhammad. Whichever assumption one makes, John’s story makes little sense—except perhaps as a parody of Deut. 24:1, which prohibits the renewal of marital relations between a man and his divorced wife, if, subsequent to the divorce, she marries a second man (and is divorced or widowed). According to John, Muhammad’s marriage to Zayd’s wife was the sabab or occasion for the rev-elation of Q. 2:230—and he apparently was unaware of Q. 33:37. Now John of Damascus was a Christian Arab and De haeresibus is a polemical text, so it is not necessarily surprising that John should have made a mistake about the identity of the verse that was revealed. It is possible, however, that John was not mistaken and that his identifi cation of Q. 2:230 as the verse revealed to Muhammad in connection with the Prophet’s marriage to Zaynab refl ects early uncertainty within the Muslim community over precisely the identity of the relevant verse, a subject to which we will return in Chapter 4. For the mo-ment, suffi ce it to say that in medieval times, Christian writers regularly cited Muhammad’s marriage to Zaynab as evidence of the Prophet’s promiscuity and unbridled self-interest.41

The contention that a specifi c episode in the life of the Prophet triggered the abolition of adoption is supported by a broad consensus that includes both Muslim and non-Muslim scholars alike. Even if this view is correct—and I do not think it is—one wonders about the historical factors that prepared the ground for abolition, on the one hand, and that accounted for its acceptance and ultimate success, on the other. Inasmuch as adoption is prohibited by Is-lamic law, the subject is not directly treated in legal texts, and it should come



as no surprise that only a handful of Western scholars have paid any attention to the subject. Following in the footsteps of medieval Christian polemicists, Orientalists active at the beginning of the twentieth century suggested that Muhammad abolished adoption out of self-interest in order to satisfy his per-sonal sexual desires.42 The only serious scholarly treatment of the subject with which I am familiar is a recent book chapter by Amira Sonbol in which she situates the abolition of adoption within the framework of the Qur�an’s at-tempt to create a new and cohesive social system in which the nuclear family was replacing tribalism.43 In this context, Sonbol argues, adoption would have interfered with the connection between kinship (nasab) and the inheritance of property: Why, for example, should an adopted child inherit on a basis of equality with a natural child? At the same time, adoption threatened to make nonsense of the incest prohibitions established in Q. 4:23. Under a regime in which adoption was practiced, it is conceivable that a male adoptee unwit-tingly might engage in illicit sexual relations with his biological mother or sister; or that a female adoptee might do the same with her biological father or brother.

It is certainly possible that the abolition of adoption was triggered by an ep-isode in the Prophet’s career, as Islamic sources indicate; and it is also possible that the abolition of the institution was related to Qur�anic sociolegal reforms, as Western scholarship has suggested. Be that as it may, one or the other expla-nation suffers from three shortcomings. First, by characterizing the Qur�anic legislation as a response to the tribal customary law of pre-Islamic Arabia, the Islamic sources obfuscate any connection between the practice of adoption in Arabia, on the one hand, and in the greater Near East, on the other. This may explain why the handful of Western scholars who have treated the aboli-tion of adoption focus exclusively on Arabia before and after the rise of Islam without paying any attention to the Near East in late antiquity. Second, by the beginning of the third/ninth century, Muslims appear to have forgotten that the abolition of adoption was related to the Qur�anic pronouncement that Muhammad is the Seal of Prophets. To the best of my knowledge, no scholar—Muslim or non-Muslim—has acknowledged or discussed the connection be-tween the theological doctrine and the legal reform. Third, both Muslim and non-Muslim scholars treat the episode that appears to have resulted in the abolition of adoption as an actual historical event. In my view, this episode in the life of the Prophet is better seen as a sacred narrative modeled on earlier sacred narratives that were part of the Judeo-Christian tradition.


Documents

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